EXHIBIT 99.7
FORM OF EXCHANGE AGENT AGREEMENT
____________, 2004
EXCHANGE AGENT AGREEMENT
X.X. Xxxxxx Trust Company, N.A.
Dear :
Lennar Corporation, a Delaware corporation (the "Company"), proposes to make an
offer (the "Exchange Offer") to exchange up to $300,000,000 aggregate principal
amount of its Senior Floating-Rate Notes due 2009 (the "Initial Notes"), for a
like principal amount of Senior Floating-Rate Notes due 2009, Series B (the "New
Notes"). The terms and conditions of the Exchange Offer are set forth in a
prospectus (the "Prospectus") included in the Company's registration statement
on form S-4 (File No. 333- ) (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "SEC"), proposed to be distributed to
all record holders of the New Notes. The New Notes and the Initial Notes are
collectively referred to herein as the "Notes." Capitalized terms used herein
and not defined shall have the respective meanings ascribed to them in the
Prospectus.
The Company hereby appoints X.X. Xxxxxx Trust Company, N.A. to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to X.X. Xxxxxx Trust Company, N.A.
The Exchange Offer is expected to be commenced by the Company on or about
___________, 2004. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Initial Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Initial
Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on __________,
2004, or on such later date or time to which the Company may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Company expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by giving oral
(confirmed in writing) or written notice to you before 9:00 A.M., New York City
time, on the next business day after the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend or
terminate the Exchange Offer, and not to accept for exchange any Initial Notes
not theretofore accepted for exchange. The Company will give oral (confirmed in
writing) or written notice of any amendment, termination or non-acceptance to
you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer," in
the Letter of Transmittal
accompanying the Prospectus or as specifically set forth herein; provided,
however, that in no way will your general duty to act in good faith and without
gross negligence or willful misconduct be limited by the foregoing.
2. You will establish an account with respect to the Initial Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Initial Notes by causing
the Book-Entry Transfer Facility to transfer such Initial Notes into your
account in accordance with the Book-Entry Transfer Facility's procedures for
such transfer.
3. You are to examine each of the Letters of Transmittal and confirmations
of book-entry transfers of Initial Notes into your account at the Book-Entry
Transfer Facility and any other documents delivered or mailed to you by or for
holders of the Initial Notes, to ascertain whether: (i) the Letters of
Transmittal, and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and that such
book-entry confirmations are in due and proper form and contain the information
required to be set forth therein, and (ii) the Initial Notes have otherwise been
properly tendered. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed, or where book-entry
confirmations are not in due and proper form or omit certain information, or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman, the President and Chief Executive
Officer, any of the Executive Vice Presidents or the General Counsel of the
Company (such approval, if given orally, to be confirmed in writing) or any
other person designated by such an officer in writing, you are authorized to
waive any irregularities in connection with any tendency of Initial Notes
pursuant to the Exchange Offer.
5. Tenders of Initial Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer
-- Procedures for Tendering Notes," and Initial Notes shall be considered
properly tendered by you only when tendered in accordance with the procedures
set forth therein. Notwithstanding the provisions of this paragraph 5, Initial
Notes which the Chairman, the President and Chief Executive Officer, any of the
Executive Vice Presidents or the General Counsel or any other officer of the
Company designated by any such person shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Initial Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Initial Notes.
7. You shall accept tenders:
(a) in cases where the Initial Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Initial Notes
provided that customary transfer requirements, including those regarding any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Initial Notes when so indicated and as
permitted in the Letter of Transmittal and return any untendered Initial Notes
to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Initial Notes properly tendered and you, on behalf of the Company, will exchange
such Initial Notes for New Notes and cause such Initial Notes to be canceled.
Delivery of New Notes will be made on behalf of the Company by you at the rate
of $1,000 principal amount of New Notes for each $1,000 principal amount of the
Initial Notes tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Initial Notes by the Company;
provided, however, that in all cases, Initial Notes tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility, a properly completed and, except as described in the section of the
Prospectus captioned "The Exchange Offer -- Procedures for Tendering Notes,"
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. Unless otherwise
instructed by the Company, you shall issue New Notes only in denominations of
$1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the section of the
Prospectus captioned "The Exchange Offer -- Withdrawal of Tenders" and the
Letter of Transmittal, Initial Notes tendered pursuant to the Exchange Offer may
be withdrawn at any time on or prior to the Expiration Date in accordance with
the terms of the Exchange Offer.
10. The Company shall not be required to exchange any Initial Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Initial Notes tendered
shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Initial Notes tendered because of an invalid tender,
the occurrence of certain other events set forth in the Prospectus or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those unaccepted Initial Notes by appropriate book-entry
transfer, together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
surrendered them.
12. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
13. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or herein or
as may be subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates for the Initial Notes deposited with you pursuant to the
Exchange Offer, and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer;
(c) will not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
will have been furnished with reasonable indemnity;
(d) may rely on and will be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram or other document or
security delivered to you and reasonably believed by you to be genuine and to
have been signed by the proper party or parties;
(e) may act upon any tender, statement, request, comment, agreement
or other instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith believe to be
genuine or to have been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the written opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by you hereunder in good faith
and in accordance with the written opinion of such counsel; and
(h) will not advise any person tendering Initial Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all or any
portion of Initial Notes or as to the market value, decline or appreciation in
market value of any Initial Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the New Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
14. You will take such action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the Company, to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request.
15. You will advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxxxxxx X. Xxxxxxxxxxx of the Company
(telephone number (000) 000-0000, facsimile number (000) 000-0000), and such
other person or persons as the Company may request, daily up to and including
the Expiration Date as to the aggregate principal amount of Initial Notes which
have been duly tendered pursuant to the Exchange Offer and the items received by
you pursuant to the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate in making
available to, the Company or any such other person or persons upon oral request
made from time to time prior to the Expiration Date of such other information as
it or he or she reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company and such person as the Company
may request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the Expiration
Date the Company shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal amount
of Initial Notes tendered, the aggregate principal amount of Initial Notes
accepted and the identity of any Participating Broker-Dealers and the aggregate
principal amount of New Notes delivered to each, and deliver said list to the
Company.
16. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you shall be preserved by you for a period of
time at least equal to the period of time you preserve other records pertaining
to the transfer of securities, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials as instructed by the Company.
17. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
20. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including attorneys' fees and expenses arising out of or in connection
with any act, omission, delay or refusal made by you in reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Initial Notes reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Initial Notes; provided, however, that anything in this
Agreement to the contrary notwithstanding, the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile which is confirmed by letter, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or notice of commencement of
action. The Company shall be entitled to participate, at its own expense, in the
defense of any such claim or other action, and, if the Company so elects, the
Company may assume the defense of any pending or threatened action against you
in respect of which indemnification may be sought hereunder, in which case the
Company shall not thereafter be responsible
for the subsequently-incurred fees and disbursements of legal counsel for you
under this paragraph so long as the Company shall retain counsel reasonably
satisfactory to you to defend such suit; provided, that the Company shall not be
entitled to assume the defense of any such action if the named parties to such
action include both you and the Company and representation of both parties by
the same legal counsel would, in the written opinion of your counsel, be
inappropriate due to actual or potential conflicting interests between you and
the Company. You understand and agree that the Company shall not be liable under
this paragraph for the fees and expenses of more than one legal counsel for you.
21. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required, in certain instances, to
deduct twenty-eight percent (28%) with respect to interest paid on the New Notes
and proceeds from the sale, exchange, redemption or retirement of the New Notes
from holders who have not supplied their correct Taxpayer Identification Number
or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
22. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Initial Notes and, upon receipt of a
written approval from the Company, shall deliver or cause to be delivered, in a
timely manner to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Initial Notes, your check in the amount of
all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Initial Notes; provided, however, that you shall reimburse the Company for
amounts refunded to you in respect of your payment of any such transfer taxes,
at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles that would apply the law of
any other jurisdictions.
24. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement. Without
limitation of the foregoing, the parties hereto expressly agree that no holder
of Initial Notes or New Notes shall have any right, benefit or remedy of any
nature whatsoever under, or by reason of, this Agreement.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part except by a written
instrument signed by a duly authorized representative of the party to be
charged.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or fax number set forth below:
if to the Company, to:
Lennar Corporation
000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone:(000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxxxx
with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to the Exchange Agent, to:
X.X. Xxxxxx Trust Company, N.A.
[ ]
New York, NY [ ]
Telephone:(212)[ ]
Fax:(212)[ ]
Attention: [ ]
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
paragraphs 17, 19, 21 and 23 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any funds or property then held by you as Exchange Agent under this
Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
LENNAR CORPORATION
By:_____________________________________
Name: Xxxxxx Xxxxxx
Title: President and Chief Executive
Officer
Accepted as of the date first above
written:
_____________________, as Exchange Agent
By:_____________________________________
Name:
Title:
